Kagan Appears Popular with Justices, But 'Tangles Regularly' with Roberts

If Solicitor General Elena Kagan is nominated and confirmed to the U.S. Supreme Court, she will be joining justices who mostly appear to appreciate her businesslike style.

The exception may be Chief Justice John G. Roberts Jr., who has had some “testy exchanges” with Kagan in oral arguments, the New York Times reports.

The justices appear to appreciate Kagan’s “candor, quick mind and informal style,” the Times says. “But she tangles regularly with Chief Justice Roberts, who has emerged as her primary antagonist, frequently criticizing her tactical decisions and trying to corner her at oral arguments.”

Roberts queried Kagan about a shift in government position on a law making it a crime to provide material support to terrorists, and a shift in the government’s rationale used to support a law restricting corporate campaign contributions. In yet another case, Roberts said Kagan’s position was “absolutely startling.”

In the campaign spending case, Citizens United v. Federal Election Commission, Kagan had dropped the argument that corporations should not be allowed to drown out the voices of ordinary citizens, a position that had supported former precedent, the Times says. In a concurrence, Roberts alluded to the government “radically reconceptualizing its reasoning.”

The newspaper says there is no indication that Roberts is singling out Kagan. “Indeed, the judge and the lawyer may view their scuffles as a sort of sport,” the newspaper says.

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